Gardner v. State ( 1917 )

HART, J.,

(after stating the facts). It is insisted by counsel for, the defendant that there is a variance between the indictment and the proof. In this contention we think counsel is correct. The indictment was framed under section 1839 of Kirby’s Digest, which provides in effect that if any carrier or other bailee shall embezzle or convert to his own use money, property, etc., which shall have come into his possession as such bailee, he shall be deemed guilty of larceny and on conviction shall be punished as in eases of larceny. The defendant .should have been indicted under section 1841 of Kirby’s Digest. The section reads as follows:

“Section 1841. Every executor, administrator or guardian who shall embezzle or fraudulently convert to his own use, or make way with or secrete with intent to embezzle, or fraudulently convert to his own use, any money, goods, rights in action, property, effects or valuable security of his testator, intestate or ward, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny. ’ ’

The two sections provide that the offense of embezzlement as described in each section shall be deemed larceny and'punished as such, but different classes of offenders are sought to be reached.

Mr. Wharton says: “A trustee is one to whom certain property is given to hold and use for the benefit of a person called a cestui que trust. The term, therefore, is more comprehensive than bailee, a bailee being simply the custodian of specific property, and is less comprehensive than that of agent, an agent being employed to acquire as well as to hold.” Wharton’s Criminal Law (11 ed.), Yol. 2, Par. 1299.

Administrators, executors and guardians are frequently named in statutes as persons who may commit embezzlements of funds intrusted to their care. State v. Adamson (Ind.), 16 N. E. 181; State. v. Gillis (Miss.), 24 So. 25, and People v. Page (Cal.), 48 Pac. 326.

It is evident that the Legislature had in mind the distinction made by Mr. Wharton when it enacted section 1841 of Kirby’s Digest. The crime defined in that section of the statute is purely a statutory crime. In order that an indictment for the offense described in the statute be sufficient, the facts should be charged which would bring the case within the terms of the statute. The proof on the part of the State tended to establish the guilt of the defendant under this section of the statute. The indictment, however, failed to charge facts which would bring the case within the terms of the statute. In short, the indictment charged a crime under .section 1839 of Kirby’s Digest, and the facts shown by the State establish the offense described in section 1841 of Kirby’s Digest.

As we have already seen, the Legislature had in mind the punishment of different offenses in these two sections of the statute, and there was a fatal variance between the allegations of the indictment and the proof made in the case.

Therefore the judgment will be reversed and the cause remanded for a new trial.